“Careless Driving Charge - Case Law Presentation”

I Have been charged with Careless Driving.

I Had a medical condition where i passed out momentarily and rear ended another vehicle.

I was taken to the Hospital by Ambulance and was admitted for 2 days to run tests.

I have found lots of Case Law such as:

R v Ariganello - R v Beauchamp

Im not in a position to hire anyone for financial reasons and will have to do it myself and would like to know when do I present the case law and what part do u present?

Also how many times can you ask for an adjournment?

Please offer some help here...

Thank you.

You are going to have to prove that a doctor was able to diagnose you with medical condition that you didn't previously know about and that condition caused you to faint. Knowledge that you could be susceptible to fainting spells for whatever reason and decided to drive anyway will be very damaging your argument as it is not supported by the cases you are citing.

Asking for an adjournment isn't automatic. You have to have a good reason. Not being ready is not a good reason if you have had access to all the disclosure (evidence) for a good amount of time.

You'll definitely need corroboration of your illness from a qualified physician. More than likely, the prosecution will request that the physician appear in person so that they can cross-examine him/her to assess whether they are confident that your illness is what caused your actions at THAT time and not something else like speeding, etc. A medical report will likely not be enough.

Of course, the downside to your claim is that you'll likely never be able to drive again. If you go on the record with medical evidence that your illness makes you unable to safely drive because you pass out then you will likely be medically suspended from driving. And to have your license ever re-instated will be a very lengthy and costly process (depending on whether they make you do rehabilitation driver training courses). So, be aware of the long-term consequences of what you put on the record.

I was doing between 40-50 in a posted 50.

My Medical condition was determined to be an isolated incident called VasoVagul, I had countless tests done immediate;y after the accident and and was required to Have a Medical form sent into the Ministry so that they could determine if I could continue to drive and it was accepted by the Ministry.

I never experienced anything like this before and am in perfect health now and prior to the Accident.

The condition is caused from sudden stress and lack of nutrients, ( i was running around that day).

I did not Drive with Undue Care and attention or without reasonable consideration for others.

It was not marked pre-emptry by the JP.

Again NO Prior History, perfect Health currently and an Isolated Incident.

If you look at R v Arignello where the defendants conviction was overturned in Appeal court, he had a bad coughing incident and was coughing the whole day, sweating and as he was driving he began coughing violently for a few seconds and had a fainting spell and went off the road and killed a pedestrian who was retrieving her mail at the side of the road.

His License was not revoked.... It was a moment of inadvertance, his eyes close for a few seconds and it happened, it was uncontrollable.

R v Beauchamp:

To support a charge under s. 29(1) of The Highway Traffic Act, the evidence must be such as to prove

beyond reasonable doubt that the accused drove in the manner prohibited by the subsection, namely, without

due care and attention or without reasonable consideration for others. The standard of care and skill to be

applied has been long established and is not that of perfection. It is, I think, correctly stated in Mazengarb,

op cit., at pp. 176-7, as follows:

"The law does not require of any driver that he should exhibit 'perfect nerve and presence of mind,

enabling him to do the best thing possible.' It does not expect men to be more than ordinary men. Drivers

of vehicles cannot be required to regulate their driving as if in constant fear that other drivers who are under

observation, and apparently acting reasonably and properly, may possibly act at a critical moment in

disregard of the safety of themselves and other users of the road.

"But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential

source of danger to other users of the road. ... The question always is 'What would an ordinary prudent

person in the position of the plaintiff have done in relation to the event complained of?'" (Pollock on Torts

uses the term "average man".)

In this case, and in some of the cases to which I have referred, evidence has been admitted to show that

the accused had a good record as a careful driver. Such evidence is not relevant on the issue of guilt or

innocence. As was said by Lord Hewart C.J. in McCrone v. Riding, supra, at p. 158: "That standard is an

objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It

is in no way related to the degree of proficiency or degree of experience attained by the individual driver."

There is a further important element that must also be considered, namely, that the conduct must be of

such a nature that it can be considered a breach of duty to the public and deserving of punishment. This

further step must be taken even if it is found that the conduct of the accused falls below the standard set out

in the preceding paragraphs. This principle may be somewhat difficult to apply, but I think it might be

illustrated by the common example of a motorist attempting to park at the curb in a space between two other

parked vehicles. Frequently one or other of the parked vehicles is bumped in the process. Damage seldom

arises, because cars are equipped with bumpers, but if damage were caused it might well give rise to a civil

action for damages, but it could hardly be said to be such a lack of care or attention as would be considered

to be deserving of punishment as a crime or quasi-crime.

Applying these principles to the facts of this case, I am of the opinion that the appellant is right in his

submission that there is no evidence to justify a conviction. The uncontradicted evidence is that the

appellant looked while coming out of the garage and there was then no motor car parked on the street. He

looked through the back window of the bus and also in the rear-view mirror before backing and then backed

very slowly. He did not see the parked car, apparently because of the length of his vehicle, the position of

his rear window and the relative position of the car at that time. It was 7 a.m. in a small town, when he

might reasonably have anticipated that a car would not drive up behind his bus into a position where it could

not be seen through his rear window in the very brief period of time that elapsed between his comming out

of the garage and his backing up. It was clearly not such a lack of care in these circumstances as could be

considered deserving of punishment. It is perhaps unnecessary to add that had the accident occurred during

a busy time of the day, when traffic might reasonably have been expected, the result might have been

different; nor do I entend to suggest that his conduct was not such as might give rise to civil liability.

The second ground of appeal is that the charge is bad for duplicity. Since this point was not raised in

either of the Courts below, I do not think we should now permit it to be raised in this Court.

Leave to appeal should therefore be granted, the appeal should be allowed and the conviction should be

quashed, the fine and any costs paid by the appellant in the Courts below to be returned to him forthwith.

Conviction quashed.

your thoughts?

I don't think you'll have much difficulty getting acquitted on the careless charge if you've got the medical corroboration for Vasovagal. As I didn't know what your diagnosis was, my concern was whether the MTO was going to medically suspend your licence. However, by the sounds of things, you have already satisfied any concerns the MTO may have.

In any event, if you refer to the decision in Devlin v. Ontario at paragraph 30[a] (referring to section 6 of the CMA Medical Guidelines)---you will see that "There is no need to restrict the driving privileges" of a patient who experiences Vasovagal when its only been an isolated incident.

So, if the MTO does attempt to restrict your licence, you can simply appeal their decision and cite the CMA guidelines (and Devlin v. Ontario (Registrar of motor vehicles)) case. By the way, vasovagal cases have been before the court, so if the court needs corroboration of the disorder, you can refer to various cases that explain the ailment---just do a search on Canlii.

Thank you kindly for the information on Devlin v. Ontario.

As the MTO accepted the Medical Report forwarded by my Physician, can the Crown attempt to restrict me from Driving if the Charge is to be withdrawn?

Also when searching for more information for Vasovagal, i see lots of information in cases in "Ontario Workplace Safety and Insurance Appeals Tribunal — Ontario"

Should i be looking for HTA cases? Please advise what and how to find please .

thank you in advance.

The prosecution has no power to restrict your driving privileges medically---only the MTO does. Even if you're convicted (which seems extremely unlikely to result if you can corroborate your diagnosis), the JP could only suspend your licence (as part of the sentence for careless driving). That is a form of punishment, whereas a medical suspension is not---a medical suspension is a preventative measure to ensure public safety; not punitive in nature. So, don't worry about that.

As for HTA cases dealing with vasovagal, there aren't any reported on Canlii. However, there ARE 6 court cases that mention the disorder. You can view them here. If anything, these court cases serve to corroborate that the illness is a medically recognized one---even the Court of Appeal dealt has heard of it! By the way, paragraph 72 and 74 of the Mussleman case has a blurb on describing some of the symptoms of vasovagal.

Bottom line: I think if you approached the prosecutor with the medical corroboration you have, I would be quite surprised if they continued with pursuing this matter. Undoubtedly, they would just dismiss the case. With such a diagnosis, I think the prosecutor would be hard-pressed to believe they have a 'reasonable prospect of conviction'. Even if the trial does proceed, I would be very surprised if you are convicted since the likelihood that a vasovagal episode occurred will raise reasonable doubt.

So i approached the Prosecutor and she acknowledged she had read my Doctors note stating that I had experienced a single episode of " VASAVAGUL " and she said Im not a Doctor and not familiar with this so my intention is to proceed with a trial.

So i could use some guidance please..... I return Feb 23rd to set a date for trial.

Question # 1.

Should i provide the Crown with different Cases before the 23rd in hopes she will reconsider and withdraw the charge?

Question #2.

Are the cases below applicable to my Defence?

8821 V MTO ( Appeal)

This case just clearly said that the Driver could not be restricted from driving due to the Isolated episode of Vasovagal.

R v Namink

(11) * No evidence of speed, No evidence of Risk taking and whether the effective cause of this Accident was momentary inattention or.....( i believe it was non medical ) which could not be anticipated, the criteria for the conviction under this section.... ( goes on to explain)

R v Ariganello ( Appeal)

Judge Lesley Baldwin ->

This is a case of Involuntary physical reaction to " Coughing/Choking" episode which through no fault of the Appellant resulted in his eyes closing for a matter of seconds.

MR.JUSTICE DURNO STATED IN THE CASE OF r V kINCH - Reflex[2004] O>J> No. 486 (Ont.SCJ) at paragraph 50:

The test for careless driving has remained constant since the court of Appeal decision in Beauchamp 1952 CanLII 60 (ON) 1953 O.R. 422 the main criteria are the starting point in determining whether the Crown has established the trial judge erred in Law.

* The evidence must be such as to prove beyond a reasonable doubt that the accused drove without due care and attention without reasonable consideration of others.

Does this apply to me.........

32 - In Cases Involving accidents, the gravamen of the offence is whether the prosecution established the accused was driving carelessly, and not the consequences of the driving: R v Pyszko reflex (1988) O.J. No.1218 ( OCJ).

R v Beauchamp (1953) O.R. 422-434

Ontario Court of Appeal

Could you please tell me if Page 1 of 8 and page 8 of 8 of Beauchamp would be applicable in my defense.

And would the other cases above be helpful and if so which parts.

Thanks In advance

Johnny b

The prosecutor and JP will be well aware on what the standard of proof required to support a conviction. If the note simply said you had an isolated case of Vasavagul then it would be helpful to your case to present information on the condition and its sympthoms focusing on how it caused you to lose control of the motor vehicle you were driving.

Give this information to the prosecutor and ask them if they still believe they have a reasonable prospect of conviction.

If you proceed to trial you will likely have to summon the doctor who diagnosed/treated you to give testimony unless someone can think of some other way. At trial citing Vasavagul as condition that can cause temporary imparement in other case law will support your arguement.

Are the Cases i provided going to help me and if so could you direct me on which ones please?

Which ones do i use?

Also with regards to Vasavagul i believe there was only one that was related to Motor Vehicles and it was an Appeal to not restrict driving, all other cases were not related to HTA or MTO., will they still be helpful or irrelevant?